Senate may not have power to block Blago pick

December 11, 2008

Senate Democrats threatened this week to refuse to seat any new Illinois senator chosen by embattled Gov. Rod Blagojevich, but it is not clear the senators have the legal authority to reject a fully qualified appointee.

In 1969, the Supreme Court ruled the House of Representatives could not refuse to seat Rep. Adam Clayton Powell, a New York Democrat who was accused of putting his wife on the payroll and misusing travel funds to vacation in the Caribbean. Despite those charges, he was reelected by his constituents in Harlem.

"The Constitution does not vest in the Congress a discretionary power to deny membership by majority vote," wrote Chief Justice Earl Warren. Congress may "judge only the qualifications set forth in the Constitution," he said.

The qualifications are minimal. A senator must be at least 30 years old, a U.S. citizen and "an inhabitant" of the state.